The Department of Justice has law-enforcement responsibilities in all kinds of areas: antitrust, tax, environment, general criminal and civil litigation, and so forth. But just about all the opposition to President-elect Donald Trump’s nominee to head the department as attorney general, Sen. Jeff Sessions, is because of one area: civil rights. That happens to be the Center for Equal Opportunity’s area, too.
Opponents to the nomination are trying to paint Sen. Sessions as a racist, and as someone who therefore will be unenthusiastic about enforcing the civil-rights laws. But the real concern here is not that Sen. Sessions will not enforce the civil-rights laws as a general matter, but that he will not distort their enforcement in key areas of interest to the Left. That is, the real objection to Sen. Sessions is that he does not like the use of racial preferences (a.k.a. affirmative action) or its close cousin and another kind of race-based decisionmaking, the “disparate impact” approach to civil-rights enforcement (which the Left likes to use to attack, for example, ballot security measures, or school-discipline or criminal-background-check employment and housing policies that have racially disproportionate results).
Consider an item from Inside Higher Ed this week:
The American Association for Access, Equity and Diversity on Saturday released a letter urging the U.S. Senate to reject President-elect Donald Trump’s nomination of Alabama Senator Jeff Sessions as U.S. attorney general. The group includes many campus diversity and equal opportunity officers, and the letter highlighted a Sessions quote on affirmative action from 1997. At the time, he said, “I think it has, in fact, been a cause of irritation and perhaps has delayed the kind of movement to racial harmony we ought to be going forward [with] today. I think it makes people unhappy if they lost a contract or a right to go to a school or a privilege to attend a university simply because of their race.” The diversity group’s letter says that Sessions has continued to espouse such views, in particular when rejecting some of President Obama’s judicial nominees. This view, the group says, distorts affirmative action in implying that colleges are accepting or rejecting candidates based on race alone.
My posted response to this story:
Oh, come on. If race is a factor in deciding who is admitted, then in some cases it makes the difference between getting in and not getting in. Otherwise, why consider it? And when that happens, then racial discrimination has occurred. No one can seriously claim that the use of racial preferences in admissions does not result in that happening, nor for that matter that race is typically given far heavier weight than a mere tie-breaker. Senator Sessions did not say that race was the only factor, just that it was the deciding one. And I’m not sure that distinction matters anyhow, as a matter of law or policy.
Put the shoe on the other foot: Suppose that a police officer stops and searches suspects in part because of race, but that the officer considers other factors as well (like age, sex, dress, behavior, etc.). Does that mean that racial discrimination is not occurring? What’s more, if a black person is stopped because of his race when he would not have been stopped if he had been white, isn’t it fair to say he was stopped “simply” because he is black?
The letter here says that affirmative action is designed to “prevent discrimination and to promote opportunities for all who are qualified to compete regardless of their race ….” But in fact the use of racial preferences is “discrimination,” by definition, and it does not result in promoting opportunities “regardless” of race.
To elaborate: Conservatives like Sen. Sessions (and we here at the Center for Equal Opportunity) really do think it is better for everyone — better for the country, better for black and white, brown and yellow and red — if the government doesn’t sort people by color and treat some better and some worse as a result of that sorting. We really think it is better to have colorblind policies now rather that at some vague, undetermined point in the future. And we really do think that it’s a bad idea to change standards, to lower standards or to get rid of standards, because of a belief that a disproportionate number of people of this color or that color won’t be able to meet those standards. The message implicit in doing that is divisive and only encourages racist thinking. And, let me add, the Center for Equal Opportunity really does believe that the best way to address racial disparities is to end the disparities in out-of-wedlock birthrates so that children of all races grow up in two-parent homes and will therefore be more likely to meet the standards that are set in our society.
We really believe all that. We really do. And whether other people agree or not, they should be able to understand that such a belief cannot legitimately be called “racist” or that those who hold it can legitimately be characterized as hostile to civil rights.
The Elephant in the Jail Cell – On a related note, the New York Times and the Washington Post each featured long, front-page stories last month about inner-city black crime. They are not labeled as such, but that’s what they are. And both are interesting, as far as they go; kudos especially to the Post’s series on how the District of Columbia’s policy of giving second chances to repeat violent offenders is maybe not working out so well. But neither story seriously grapples with the obvious problem that is nonetheless clearly there, just below the surface of the narrative: Boys are getting into trouble when they grow up in environments where fathers are not in the picture (and their absence is unsurprising since the mothers are not married).
Farewell to Nat Hentoff – Over the weekend, maverick columnist Nat Hentoff died. Mr. Hentoff was a liberal on most issues, but not all, and one of the issues in which he broke ranks with the Left was racial preferences. We were always gratified by his support. R.I.P.
CEO Is Watching You, Federal Bureaucrats – Throughout the Obama administration, the Center for Equal Opportunity has monitored the Federal Register every day with an eye toward blowing the whistle on illegally discriminatory federal programs. Here’s an example of the kind of comment we have sent during this time. By the way, I love the opening sentence of this particular notice: “The SEED program provides funding for grants to National Not-for-Profit Organizations for projects that support teacher or principal training or professional enhancement activities and that are supported by at least Moderate Evidence of Effectiveness.” Let’s Make America Moderately Effective Again!
January 4, 2017
To whom it may concern:
We have two comments on the Federal Register notice of December 22, 2016 (81 FR 93671: “Applications for New Awards; Supporting Effective Educator Development Grant Program”).
First, students who attend a “high-minority school” are defined as a “high-need students” — that is, “students who are at risk of educational failure or otherwise in need of special assistance and support.” Justice Thomas began his concurrence in Missouri v. Jenkins, 515 U.S. 70 (1995), by stating: “It never ceases to amaze me that the courts are so willing to assume that anything that is predominantly black must be inferior.” Does the U.S. Department of Education share this lamentable assumption? If not, then we respectfully suggest that the equation of “high-minority” with “high-need” be discarded in this and future Federal Register notices of this kind.
Second, the notice states that one “priority area” is “[i]ncreasing the number of individuals from groups traditionally underrepresented in STEM, including minorities, individuals with disabilities, and women, who are teachers of STEM subjects and have increased opportunities for high-quality preparation or professional development.” By what statutory authority is the U.S. Department of Education encouraging recipients of federal funds to engage in race- and sex-based decisionmaking? As you may know, it is generally illegal for the government to single out for special treatment or even use classifications based on race, ethnicity, or sex. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995) (“all racial classifications … must be analyzed by a reviewing court under strict scrutiny”); Mississippi University for Women v. Hogan, 458 U.S. 718 (1982) (gender classifications require an “exceedingly persuasive justification”); see also 42 U.S.C. 2000d (barring discrimination on the basis of race, color, and national origin in federally funded programs). Indeed, such classifications and favoritism are “presumptively invalid” (see Personnel Administrator v. Feeney, 442 U.S. 256 (1979)). Accordingly, unless there is some explicit statute requiring the use of such categories here, we respectfully request that the highlighted language be deleted.
Thank you for your attention to our concerns, and we look forward to your reply.
